Citation Nr: 0946959
Decision Date: 12/10/09 Archive Date: 12/18/09
DOCKET NO. 09-33 359 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for the cause of the
Veteran's death.
2. Entitlement to Dependency and Indemnity Compensation
(DIC) under the provisions of 38 U.S.C.A. § 1151.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
ATTORNEY FOR THE BOARD
Tressa J. Gill, Associate Counsel
INTRODUCTION
The Veteran had active service from June 1944 to July 1946.
The Veteran died in July 2008. The appellant is the
Veteran's surviving spouse.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2008 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Portland, Oregon, which denied the benefits sought on appeal.
The appellant appealed that decision to the Board, and the
case was referred to the Board for appellate review.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. All evidence necessary to decide the claims has been
obtained; the appellant has been provided notice of the
evidence necessary to substantiate her claims and has been
notified of what evidence she should provide and what
evidence VA would obtain; there is no indication that the
appellant has evidence pertinent to her claims that she has
not submitted to VA.
2. The certificate of death indicates that the Veteran died
in July 2008; the cause of death was recorded as intracranial
hemorrhage; there is no evidence of an in-service head injury
or cerebrovascular (small vessel) disease or brain
hemorrhage; there is no medical evidence of cerebrovascular
disease until many years post-service; there is post-service
medical evidence of two head injuries.
3. There is no competent opinion that links the Veteran's
fatal intracranial hemorrhage to any remote incident of
service.
4. At the time of the Veteran's death, service connection
was in effect for bilateral hearing loss.
5. There is no medical evidence or competent opinion that
suggests the Veteran's service-connected bilateral hearing
loss played any causative role in his death.
6. The Veteran's death was not proximately due to
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of VA, to
include any failure to properly screen donated blood for
hepatitis B.
CONCLUSIONS OF LAW
Service connection for the cause of the Veteran's death is
not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1310, 5103,
5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102,
3.159, 3.303, 3.307, 3.309, 3.310, 3.312 (2009).
The criteria for DIC benefits pursuant to the provisions of
38 U.S.C.A. § 1151 have not been met. 38 U.S.C.A. §§ 1151,
5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§
3.159, 3.361 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L.
No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA provides,
among other things, for notice and assistance to VA claimants
under certain circumstances. VA has issued final rules
amending its adjudication regulations to implement the
provisions of the VCAA. See generally 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a). The intended effect of these
regulations is to establish clear guidelines consistent with
the intent of Congress regarding the timing and the scope of
assistance VA will provide to a claimant who files a
substantially complete application for VA benefits or who
attempts to reopen a previously denied claim.
In order to be consistent with 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant
about the information and evidence not of record that is
necessary to substantiate the claim; (2) inform the claimant
about the information and evidence that VA will seek to
provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim. This fourth
element of the notice requirement comes from the language of
38 C.F.R. § 3.159(b)(1).
The Court determined in Hupp v. Nicholson, 21 Vet. App. 342
(2007) that, when adjudicating a claim for DIC, VA must
perform a different analysis depending upon whether a veteran
was service connected for a disability during his or her
lifetime. The Court concluded that, in general, § 5103(a)
notice for a DIC case must include (1) a statement of the
conditions, if any, for which a veteran was service-connected
at the time of his or her death; (2) an explanation of the
evidence and information required to substantiate a claim for
service connection for the cause of the veteran's death based
on a previously service-connected condition; and (3) an
explanation of the evidence and information required to
substantiate a claim based on a condition not yet service-
connected.
On March 3, 2006, the Court also issued a decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), which held that the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to
all five elements of a service connection claim. Those five
elements include: 1) veteran status; 2) existence of a
disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. The Court held that, upon receipt of
an application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Additionally, this notice must indicate that a disability
rating and an effective date for the award of benefits will
be assigned if service connection is awarded.
There is no issue as to providing an appropriate application
form or completeness of the application. During the pendency
of the appeal, the appellant was issued a VCAA letter in
August 2008 regarding the issues adjudicated in this
decision. This notice fulfilled the provisions of 38
U.S.C.A. § 5103(a). The appellant has been informed of the
information and evidence that VA will seek to provide; the
information and evidence the claimant is expected to provide;
and to provide any evidence in her possession that pertains
to the claims.
Review of the VCAA notification letter of record relating to
the DIC claim under the provisions of 38 U.S.C.A. § 1310;
38 C.F.R. § 3.312, the appellant was informed that VA needed
evidence that the Veteran died in service or medical evidence
showing that the Veteran's service-connected conditions
caused or contributed to the Veteran's death. The only
disability that was service connected during the Veteran's
lifetime was bilateral hearing loss.
Although she was not specifically informed of what
disabilities service connection was in effect for, the
appellant's contention is very specific: A 1990 VA blood
transfusion led to hepatitis B and contributed to the
Veteran's death-causing intracranial hemorrhage. Based on
this specific contention, the Board finds that it is not
necessary to remand the claim to send the appellant further
notification pursuant to Hupp v. Nicholson, 21 Vet. App. 342
(2007). The appellant has identified her specific contention
clearly and she has been informed of the need of medical
evidence to demonstrate the required nexus. The only
disability that was service connected during the Veteran's
lifetime was bilateral hearing loss and there is no
suggestion from the evidence of record or from the appellant
or representative of a link between hearing loss and the
fatal intracranial hemorrhage. Additionally, the August 2008
VCAA letter included the statutory requirements for a 38
U.S.C.A. § 1151 claim. The appellant received appropriate
VCAA notification relating to her claim for DIC claim under
the provisions of 38 U.S.C.A. § 1151.
In view of the foregoing, the Board finds that a remand would
not result in additional benefits flowing to the appellant.
See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also
Soyini v. Derwinski, 1 Vet. App. 541, 546 (1991) (strict
adherence to requirements in the law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the claimant).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II), the Court held, in part, that a VCAA notice, as required
by 38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. In this case, the VCAA
letter was issued before the initial rating decision on
appeal; therefore, the VCAA notice was timely. With respect
to the Dingess requirements, the letter noted above failed to
provide notice of the type of evidence necessary to establish
an effective date for the claim for service connection for
the cause of the Veteran's death. The Board finds, however,
that such failure is harmless because, as will be explained
below in greater detail, the preponderance of the evidence is
against the appellant's claim. Thus, any question as to the
appropriate effective date to be assigned is moot. See
Dingess v. Nicholson, 19 Vet. App. 473 (2006). Additionally,
the appellant has had ample opportunity to respond and
supplement the record. The Board also notes that the
appellant has not demonstrated or even pled prejudicial
error. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009),
regarding the rule of prejudicial error.
The service treatment records were damaged in the fire at the
National Personnel Records Center (NPRC) in St. Louis,
Missouri in July 1973. As a result, the VA has a heightened
responsibility to explain the rationale and bases for its
decision. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).
With respect to the duty to assist, the Board also finds that
all necessary assistance has been provided to the appellant
regarding the issues adjudicated in this decision. In this
case, the Veteran was service connected for bilateral hearing
loss. The Veteran's intracranial hemorrhage on his
certificate of death was first shown decades post-service,
and there is neither medical evidence nor competent opinion
of a nexus between the Veteran's fatal intracranial
hemorrhage and his period of service or his service-connected
disability. A VA opinion has been obtained regarding whether
there is a nexus between the Veteran's death and his
nonservice-connected hepatitis B, which the appellant alleges
was due to a February 1990 VA blood transfusion. See 38
C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79
(2006). See also 38 U.S.C.A. § 1151, which is applicable to
the appellant's contention that the Veteran received blood
through VA negligence and that it allegedly resulted in his
developing hepatitis B. The July 2009 VA medical opinion is
adequate to address the etiological questions at hand; it is
supported by a rationale with citation to the clinical
record. There is no duty to provide another medical opinion.
In view of the foregoing, the Board finds that VA has
fulfilled its duty to notify and assist the appellant in the
claims adjudicated upon the merits in this decision.
Adjudication of the claims at this juncture, without
directing or accomplishing any additional notification and/or
development action, poses no risk of prejudice to the
appellant. Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
Law and Regulations
In general, service connection may be granted for disability
resulting from disease or injury incurred in or aggravated
during active military service. 38 U.S.C.A. § 1110. Service
connection may also be established for disease diagnosed
after discharge from service when all the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Service connection may also be granted for certain chronic
diseases, to include brain hemorrhage, when they are
manifested to a compensable degree within one year of
separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309.
To establish service connection for the cause of the
Veteran's death, evidence must be presented which in some
fashion links the fatal disease to a period of active service
or an already service-connected disability. See 38 U.S.C.A.
§§ 1110, 1310; 38 C.F.R. §§ 3.303, 3.310, 3.312. In short,
the evidence must show that a service-connected disability
was either the principal cause or a contributory cause of
death. For a service-connected disability to be the
principal (primary) cause of death it must singly or with
some other condition be the immediate or underlying cause or
be etiologically related. For a service-connected disability
to constitute a contributory cause it must contribute
substantially or materially; it is not sufficient to show
that it casually shared in producing death, but rather it
must be shown that there was a causal connection. 38
U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v.
Brown, 7 Vet. App. 36, 39 (1994).
For claims filed after October 1, 1997, such as this claim,
dependency and indemnity compensation shall be awarded for a
qualifying veteran's death if the death was not the result of
the Veteran's willful misconduct and the death was caused by
hospital care or medical treatment furnished by the VA and
the proximate cause of the death was carelessness,
negligence, lack of proper skill, error in judgment, or
similar instance of fault on the part of VA in furnishing the
hospital care, medical or surgical treatment, or examination,
or an event not reasonably foreseeable. See 38 U.S.C.A. §
1151.
To establish causation, the evidence must show that the
hospital care, medical or surgical treatment, or examination
resulted in the veteran's additional disability or death.
Merely showing that a veteran received care, treatment, or
examination and that the veteran died does not establish
cause. 38 C.F.R. § 3.361(c) (1). Hospital care, medical or
surgical treatment, or examination cannot cause the
continuance or natural progress of a disease or injury for
which the care, treatment, or examination was furnished
unless VA's failure to timely diagnose and properly treat the
disease or injury proximately caused the continuance or
natural progress. 38 C.F.R. § 3.361(c) (2).
To establish that carelessness, negligence, lack of proper
skill, error in judgment, or similar instance of fault on
VA's part in furnishing hospital care, medical or surgical
treatment, or examination proximately caused a veteran's
death, it must be shown that the hospital care, medical or
surgical treatment, or examination caused the veteran's death
and VA failed to exercise the degree of care that would be
expected of a reasonable healthcare provider; or VA furnished
the hospital care, medical or surgical treatment, or
examination without the veteran's or, in appropriate cases,
the veteran's representative's informed consent. 38 C.F.R. §
3.361(d) (1). Whether the proximate cause of a veteran's
death was an event not reasonably foreseeable is in each
claim to be determined based on what a reasonable healthcare
provider would have foreseen. The event need not be
completely unforeseeable or unimaginable but must be one that
a reasonable healthcare provider would not have considered to
be an ordinary risk of the treatment provided. 38 C.F.R. §
3.361(d) (2).
It is the defined and consistently applied policy of VA to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt is
meant one which exists because of an approximate balance of
positive and negative evidence which does not satisfactorily
prove or disprove the claim. It is a substantial doubt and
one within the range of probability as distinguished from
pure speculation or remote possibility. See 38 C.F.R. §
3.102.
Factual Background
The appellant seeks service connection for the Veteran's
cause of death under 38 U.S.C.A. § 1310 and 38 C.F.R. § 3.312
and DIC benefits pursuant to 38 U.S.C.A. § 1151. She
contends that during the Veteran's February 1990 bladder
surgery in the Roseburg VA Medical Center (VAMC) he received
a blood transfusion and consequently developed hepatitis B.
The appellant maintains that at that time blood products were
not adequately checked for hepatitis B. She further asserts
that his contraction of hepatitis B contributed to his death,
because his "heart was damaged by hepatitis B", which
required anticoagulant medications "that allowed for the
bleed that killed him". The appellant also contends that
the only risk factors for hepatitis B the Veteran had were VA
blood transfusions and evaluation or treatment, to include
blood tests.
The certificate of death indicates that the Veteran died in
July 2008. The cause of death listed on his death
certificate was intracranial hemorrhage. No contributory
causes were indicated.
VA treatment records from February 1990 showed that the
Veteran had bladder diverticulectomy and two blood
transfusions, which had a negative antibody screen. In
October 1990, he had a repair of a right indirect inguinal
hernia with reinforcement with mesh; no blood transfusions
were noted.
In March 2000 VA treatment records, the Veteran reported
contracting hepatitis B from a blood transfusion during his
bladder surgery in 1990.
VA treatment records from January 2008 noted the Veteran's
diagnosis of an atrial flutter and his risks for falling and
of bleeding following a potential fall. He had a normal CT
scan of his head, but remote cerebral vascular accidents were
noted. Because of the Veteran's fall history, the
cardiologist was concerned about possible intracranial
hemorrhage if he suffered a fall while taking Coumadin and
Aggrenox. Therefore, only the Coumadin was to be continued.
Hematologists suspected that the Veteran's thrombocytopenia
was due to chronic hepatitis B cirrhosis and/or Epivir. A
history of hypertension was also noted.
In February 2008 VA treatment records, the Veteran reported
another stroke. A CT scan of his head showed prior trauma
involving the right frontal lobe. His wife reported that he
was hospitalized due to liver failure; he had a history of
end stage hepatitis B liver cirrhosis and hepatic
encephalopathy.
In February 2008, the Veteran was admitted to a private
hospital with hepatic encephalopathy; laboratory results
showed an elevated ammonia level. A CT scan of his head
showed small, old right frontal cortical infarcts and mild
ischemic white matter change and cortical atrophy.
In July 2008 private treatment records, the Veteran was
diagnosed as having a large amount of ventricular hemorrhage,
and some parenchymal hemorrhage was also identified. He was
developing hydrocephalus, and he had periventricular chronic
small vessel ischemic changes. Additionally, he had
thrombocytopenia and coagulopathy. He died the following day
due to an intracerebral hemorrhage.
In her November 2008 notice of disagreement, the appellant
reiterated that the Veteran's hepatitis B began after the
1990 surgery. She added that he suffered infections after
the surgery and that he was exposed to other veterans while
hospitalized who could have infected him. She alleged that
he could have contracted it through nurses when they changed
intravenous lines and gave injections. She claimed that this
was his only risk factor for hepatitis B, because he was not
born with it, did not use dirty needles, and did not engage
in unprotected sex. She stated that his hepatitis B
significantly weakened him and caused a failure to thrive.
In the July 2009 VA medical opinion, the physician stated
that the computerized patient record system showed that in an
August 1999 urgent care note, it was reported that the
Veteran's [former] wife had a blood transfusion in 1968. In
a September 1999 infectious disease note, it was reported
that the Veteran's only risk factor to hepatitis B was sexual
exposure to his hepatitis B-infected [former] wife. It was
noted that the Veteran's [former] wife was already receiving
treatments for hepatitis B at that time. In a May 2002
infectious disease note, it was recorded that the Veteran's
liver function had normalized, but he had developed a high
ammonia level most likely related to cirrhosis. The
physician observed that screening procedures were in place at
the time of the Veteran's 1990 blood transfusion, and it was
unlikely that he received hepatitis B from the blood
transfusion, especially as the record does not show a problem
with or negligence in the screening process. The physician
concluded that it was more likely that the Veteran received
hepatitis B from his [former] wife than from the 1990 blood
transfusion. Therefore, the Veteran's hepatitis B was less
likely than not caused by or a result of the blood
transfusion in 1990 and less likely than not caused by or a
result of negligence or carelessness on the part of VA.
Analysis: Service Connection for Cause of Death
The certificate of death indicates that the Veteran died in
July 2008. The immediate cause of death was listed as
intracranial hemorrhage.
There is no medical evidence to show intracranial hemorrhage
or underlying cerebrovascular disease during service or for
many years thereafter, nor is there competent evidence to
link the Veteran's fatal intracranial hemorrhage to service.
An intracranial hemorrhage was not diagnosed until July 2008,
over 60 years after service and just a day before his death.
The record is devoid of any indication of an in-service head
injury-the only medical evidence of head trauma is dated many
years after service-and there is no medical evidence of
cardiovascular disease, to include cerebrovascular disease
(small vessel disease in the brain) during service or for
decades thereafter.
As service connection was in effect for bilateral hearing
loss, the Board must determine whether this disability caused
or materially contributed to his death. 38 C.F.R. §§ 3.310,
3.312. There is no medical evidence or competent opinion to
show that the Veteran's bilateral hearing loss played any
causative role in his death, either directly or by materially
contributing to his fatal intracranial hemorrhage and it is
not contended otherwise.
The primary impediment to a grant of service connection for
the cause of the Veteran's death in this case is the absence
of competent evidence to causally link a service-connected
disability to his death. The private and VA treatment
records suggest that that the Veteran's intracranial
hemorrhage was caused by anticoagulants that he took to
control his heart problem, although there is also a history
of two significant post-service head injuries. In any event,
there is no medical evidence or competent opinion that
suggests a nexus between the Veteran's intracranial
hemorrhage and his service-connected hearing loss or any
incident of or finding recorded during service.
In summation, the certificate of death indicates that the
Veteran died in July 2008; the cause of death was recorded as
intracranial hemorrhage. There is no evidence of an in-
service head injury, cerebrovascular (small vessel) disease
or brain hemorrhage. There is no medical evidence of any
type of cardiovascular disease until decades post-service and
the only apparent head trauma occurred many years after
service. At the time of the Veteran's death, his only
service connected disability was bilateral hearing loss.
There is no competent opinion that links the Veteran's fatal
intracranial hemorrhage to his hearing loss or any remote
incident of service.
In view of the foregoing, the Board finds that the
preponderance of the evidence is against the claim for DIC
under the provisions of 38 U.S.C.A. § 1310 and 38 C.F.R.
§ 3.312. As the preponderance of the evidence is against the
claim, the benefit of the doubt doctrine is not applicable
and the claim for service connection for the cause of the
Veteran's death under the provisions of 38 U.S.C.A. § 1310
and 38 C.F.R. § 3.312 must be denied. See 38 U.S.C.A. §
5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed.
Cir. 2001) (holding that "the benefit of the doubt rule is
inapplicable when the preponderance of the evidence is found
to be against the claimant"); Gilbert v. Derwinski, 1 Vet.
App. 49, 56 (1990).
Analysis: DIC under the provisions of 38 U.S.C.A. § 1151
The appellant contends, in essence, that the Veteran
contracted hepatitis B due to negligent VA treatment. She
specifically asserts that his hepatitis B began after 1990
surgery, which necessitated intravenous blood transfusion at
a VA facility and that he was exposed to other veterans while
hospitalized who could have infected him during that time.
She also alleges that the Veteran could have contracted his
hepatitis through nurses when they changed intravenous lines
and gave injections. The appellant claims that these events
were his only risk factors for hepatitis B, because he was
not born with it, did not use dirty needles, and did not
engage in unprotected sex. She further contends that the
Veteran's hepatitis B significantly weakened him and caused a
failure to thrive.
After careful review of the evidentiary record, the Board
concludes that there is no medical evidence or competent
opinion that supports a finding that the proximate cause of
the Veteran's death was carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on the part of VA during the February 1990 hospitalization,
to include the receipt of a blood transfusion. There is no
evidence showing that VA failed to exercise the degree of
care that would be expected of a reasonable health care
provider during the hospitalization in question. In other
words, there is no objective evidence indicating that a
physician exercising the degree of skill and care ordinarily
required of the medical profession reasonably would have
performed the February 1990 blood transfusion differently,
nor is there competent evidence of any other type of
negligent VA care.
The Board has considered the appellant's beliefs that VA
failed to properly screen the blood used in the February 1990
blood transfusion, but this is unsupported by the medical
evidence. As noted above, there is no competent medical
evidence or opinion of record that demonstrates that VA
failed to properly screen the blood product or that the
transfusion proximately caused the Veteran's hepatitis B. In
fact, the record shows that the blood was screened and the
results were negative for antibodies. Furthermore, the July
2009 VA medical opinion stated that the Veteran's former wife
had a blood transfusion in 1968 and was diagnosed as having
and receiving treatment for hepatitis B; the Veteran most
likely contracted hepatitis B from her.
As noted in the analysis regarding the appellant's claim for
service connection for the cause of the Veteran's death
(under 38 U.S.C.A. § 1310; 38 C.F.R. § 3.312), the cause of
the Veteran's death was an intracranial hemorrhage; the death
certificate does not refer to hepatitis B. There is medical
evidence of complications from hepatitis but no competent
opinion that links such to the Veteran's fatal intracranial
hemorrhage. Even assuming hepatitis B did play a causative
role in the Veteran's death, there is no credible or
competent evidence to show that his contracting hepatitis B
was proximately due to carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on the part of VA, to include any failure to properly screen
donated blood for hepatitis B. The only competent opinion of
record that addresses this latter question weighs against
such a finding.
The Board recognizes that lay statements may serve to support
claims by supporting the occurrence of lay-observable events
or the presence of disability or symptoms of disability
subject to lay observation. 38 C.F.R. § 3.303(a); See
Jandreau, supra; Buchanan, supra. However, the issue in this
case requires medical training for a determination as to
causation, standard of care, foreseeability, etc. That is,
the appellant, as a lay person, does not have the education
or training to provide a competent opinion on such matters;
her lay opinion is of no probative value. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown,
10 Vet. App. 183, 186 (1997) ("a layperson is generally not
capable of opining on matters requiring medical knowledge");
Jandreau, supra.
The Board does not doubt the appellant's sincerity; however,
the file does not contain any probative evidence to support
her assertions. Simply put, the appellant has submitted no
competent evidence which tends to substantiate her
contentions that the Veteran contracted hepatitis B through
the February 1990 blood transfusion or died due to
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on VA's part in
furnishing the medical or surgical treatment to the Veteran,
or an event not reasonably foreseeable.
In view of the foregoing, to include the absence of competent
evidence which demonstrates additional disability as a result
of carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on VA's part in
furnishing the medical or surgical treatment, the Board
concludes that the preponderance of the evidence is against
the appellant's claim of entitlement to DIC under the
provisions of 38 U.S.C.A. § 1151.
As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine is not applicable and the
claim for DIC under the provisions of 38 U.S.C.A. § 1151 must
be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274
F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the
benefit of the doubt rule is inapplicable when the
preponderance of the evidence is found to be against the
claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).
ORDER
Entitlement to service connection for the cause of the
Veteran's death is denied.
Entitlement to DIC under the provisions of 38 U.S.C.A. § 1151
is denied.
____________________________________________
R. F. Williams
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs